Non-unionized employees who are dismissed without proper notice or compensation may have a claim for wrongful dismissal. This means that they can sue their former employer in Court to force the employer to provide appropriate compensation. Employers may defend against these claims in a number of ways. First, they may say that the employee was properly dismissed for "just cause." If this can be proven successfully, the employee loses and may even have to pay some of the employer's legal costs. It is very difficult for employers to prove just cause. In reality, most wrongful dismissal cases settle well before a trial.

Employers may also defend against these cases by relying on a written employment contract to pay only the minimum amount called for in the contract. This can be a valid defence if the employee signed an enforceable contract when first hired.

Another available defence for employers is the argument that the employee has "mitigated his or her damages" or has "failed to mitigate." This means that employees are under an obligation to look for work after being dismissed and to accept a reasonable job offer if one comes along. Once they accept a new job, any money that they earn during the reasonable notice period reduces the amount that the employer must pay.

1. Wrongful dismissal claims over $50,000:

In Toronto, all cases designated as "wrongful dismissal" are required to go through a process of mandatory mediation. Effective January 1, 2005, the parties are required to agree upon a mediator and schedule a mediation within 150 days after the parties have served all of their court documents. Mandatory mediation is a relatively new part of litigation. The idea is to see if the parties can resolve their dispute before running up extensive legal fees by proceeding through the litigation process. Parties prepare short mediation briefs with an overview of their case and any particular documents that they are relying on. They then attend at a mediation session with a neutral mediator who tries to help the parties resolve their dispute.

If parties have a genuine interest in resolving the dispute, they will often agree on a mediator and a date fairly quickly. The mediator will usually be someone who is knowledgeable about employment law and wrongful dismissal cases. If the parties cannot agree to a mediator or date, then they may apply to the Court to appoint one. The appointed mediator may not have any particular knowledge about employment law and may also have little experience mediating disputes. Nevertheless, the parties are required to attend and pay for mediation.

IF the claim cannot be resolved during mediation, it proceeds to examinations for discovery. This is a process whereby each side gets to question the other side about all aspects of the other side's case. The process is designed to allow the parties to fully understand each other's position, the evidence that each side has, to obtain additional documents or information that has not yet been provided. Often there are disputes over the propriety of questions that are asked during examinations and sometimes these disputes have to be resolved in court.

2. Wrongful dismissal claims between $10,000 and $50,000:

For cases that are likely to have a value of between $10,000 and $50,000, Ontario Courts use a "simplified procedure." Essentially, this procedure cuts out the examination for discovery part of the process. Just like in ordinary procedure cases, parties file Statements of Claim and Defence.

They then exchange sworn affidavits of documents which include lists of potential witnesses and contact information for the witnesses.

After that, the parties are expected to try to resolve the dispute. If they cannot do so, a readiness for Pre-Trial is filed and a pre-trial is scheduled.

As of January 1, 2005, the parties are then required to arrange for and conduct a mandatory mediation. As with wrongful dismissal cases worth more than $50,000, the purpose of the mediation is to resolve the dispute before incurring the expensive costs of a trial. If mediation fails, the parties then proceed to a pre-trial.

Unlike the pre-trials in the ordinary procedure, the parties are required to attend these pre-trials along with their lawyers. Judges are usually more pro-active at these pre-trials and often push the parties to try to resolve their disputes.

If the dispute cannot be resolved at the pre-trial, a trial is scheduled within a few months and the case goes to trial.

The Simplified Procedure also includes a few other technical differences, including the way that the parties resolve outstanding issues that come up before the trial.

3. Wrongful dismissal claims under $10,000:

Employees with a claim under $10,000 may file a claim in Small Claims Court. There is a small filing fee and the employee may proceed to court with or without legal representation. It is usually too expensive to use a lawyer to assist with a small claims matter. Some individuals may want to spend an hour or two with a lawyer to review their claim and discuss what type of evidence will be needed at the trial and what arguments can be made. However, it rarely makes economic sense to hire a lawyer to go to small claims court.

Employers however, often prefer to have outside counsel appear on their behalf at Small Claims Court trials. They are concerned about the precedent that may come from a negative decision or they simply wish to ensure that their interests are properly represented in Court.

In most cases, there is a pre-trial with a Small Claims Court judge at which the judge will try to convince the parties to resolve the matter. If the matter does not settle, it will proceed to a trial.

Small Claims court proceedings are much less formal than other court proceedings. It is easier to introduce evidence, including written witness statements and the judge may take an active role in questioning both sides to better understand the issue.